Planned Parenthood sues over health care exclusion

Group says barring it from Medicaid program is unconstitutional

Updated 2:19 pm, Thursday, April 12, 2012

Texas Planned Parenthood affiliates filed a federal lawsuit Wednesday to block a rule excluding their health centers from a key program for low-income women, the latest round in a protracted skirmish between the state and federal governments.

The suit, filed in Austin, says Texas' exclusion of Planned Parenthood from the Medicaid Women's Health Program violates the organization's constitutional rights to freedom of speech and association. It asks the court to stop the rule from taking effect May 1.

"The government cannot condition your participation in the health services on giving up your free speech," said Pete Shenkken, Planned Parenthood's lawyer. "The First and 14th Amendment are clear that the government cannot deny public funding of non-abortion health services simply because a business is affiliated with legally and financially separate entities that provide abortions with private funding."

Follows state's own suit

Shenkken said the suit also argues that the rule violates the state's own statute because "it defeats the purpose of the state program" - expanding health care to women.

The legal action follows by less than a month a lawsuit filed by Texas Attorney General Greg Abbott that focused on the same program. Abbott's suit seeks to prevent the Obama administration from ending the program's funding, a step the federal government announced in March after Texas said it would begin implementing the rule.

The rule was approved in 2005, but Texas delayed enforcing it until this year because of concerns that it violates federal regulations regarding Medicaid programs.

Gov. Rick Perry's office also downplayed the suit's chances. Press secretary Catherine Frazier said the state has "no obligation to provide taxpayers dollars to Planned Parenthood. Texas law has been very clear from day one of this program that abortion providers and their affiliates - like Planned Parenthood - are not qualified providers."

But legal experts said the suit stands a good chance of prevailing.

"I think Planned Parent­hood has a strong case because it appears they're being denied access to government funding strictly based on their affiliation with people the government doesn't like," said Seth Chandler, a University of Houston law professor. "If Planned Parenthood's entities are as separate as the organization claims, that seems like a problem."

Jennifer Bard, a Texas Tech law professor and director of the university's health law program, said the court will have to decide if the state's decision not to provide funding to organizations whose affiliates use separate funds for abortion is the same "as punishing an individual for belonging to a group of which the government does not approve."

If the court follows this line of reasoning, she said, it probably will find that the state is violating the First Amendment. But if the court doesn't equate a health clinic's affiliation with a nonprofit to that of an individual with a political party, then it will most likely dismiss the complaint, she said.

Precedents elsewhere

Shenkken said courts have granted similar injunctions to Planned Parenthood in four other states that tried to deny Medicaid funding to it. Two of the states appealed the suits and two did not contest them, he said. The appeals are pending.

Planned Parenthood clinics serve about 40 percent of the 130,000 low-income women in the program, which offers cancer and other health screenings, as well as birth control services. The federal government provides 90 percent of the funding.

Perry has said the state will find the funding to continue the program on its own.

Goodman said a review will determine by May whether other providers will be affected by the law.

All of the state's Planned Parenthood affiliates plan to shut down their Medicaid Women's Health programs April 30, when Texas HHSC says it will start enforcing the rule. Patricio Gonzalez, head of Planned Parenthood of Hidalgo County, said in a news briefing that the organization likely will have to shut down two or three of its four clinics because of the change.

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